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ANALYSIS OF AUGUST 5, 2008 CAV OPINIONS

[Posted August 6, 2008] Ah, those naughty folks in IT at the Court of Appeals of Virginia . . .

Normally the CAV posts published opinions to its web site on Tuesday mornings, usually by about 10:30 am. Yesterday, there was nothing up by 2:00 pm or so, so I assumed that no published opinions had been issued that day. Surprise! Three such opinions popped up somewhere around 4 pm, making it impossible, as a practical matter, for me to post same-day analysis of those three decisions. On the assumption that late is indeed better than never, here is a discussion of yesterday’s decisions.

Criminal law
Criminal appellants have been taking a beating in the CAV lately, but yesterday, they got victories in the two published criminal decisions. Both of these cases came out of Virginia Beach. The first, Anderson v. Commonwealth, involves convictions of robbery and conspiracy to rob a sporting good store in that city.

Anderson worked at the store, and contrived a plan to rip the place off by faking an armed robbery. He and a coworker (who is presumably also now a former store employee) arranged for a third party to come into the store, pretend to rob Anderson, and then eventually split the loot with the insiders. And they pulled it off, too; the faux robber entered the store, pulled an air pistol (which might have been a glorified BB gun) and pointed it at Anderson, who dutifully scooped tens and twenties into a bag and handed it over.

While it’s possible that the whole thing might have been caught on the store’s video cameras, police got all they needed, at first, by interviewing another store employee, one Rinehart, who wasn’t in on the scam. The robber, upon entering the store, glanced momentarily at Rinehart, then turned his back on him and drew the gun on Anderson, as described above. The robber never said or did anything toward the innocent witness.

The Commonwealth charged Anderson with robbery and with conspiracy (in planning the whole thing with his cohorts). There is little question that they’ve got ‘im on the conspiracy charge; the other store employee who was involved ratted him out. The real issue in yesterday’s opinion is the robbery charge. Robbery requires proof that the defendant used force or intimidation to get the loot. Since Anderson knew that he wasn’t really in any danger from the gun, just who had been threatened in this caper?

Prosecutors seized on the innocent store employee, Rinehart, contending that he was the victim. But the Court of Appeals notes the hole in that theory – Rinehart got merely a glance from the fake robber, and nothing more. The robber didn’t get any money by threatening or harming him in any way. True, Rinehart may have felt some fear as a result of the robbery, but that doesn’t make the threat the means by which the robber got the proceeds. The court accordingly reverses the robbery conviction.

The other criminal decision of the day, Middlebrooks v. Commonwealth, is a search and seizure appeal in a drug distribution case. In the (ahem) wee hours of a July morning at the Virginia Beach oceanfront, Middlebrooks had to go. I mean he had to go. His car was parked at a McDonald’s restaurant, but the store was closed for the night (unhelpfully, the drive-through lane was open). He accordingly answered nature’s call right there in the parking lot. Alas, a cluster of Virginia Beach’s Finest was in visual range, and one of the officers walked over and gave him a summons for urinating in public.

During that process, the officer asked if the car belonged to Middlebrooks. “It’s my people’s car,” came the cryptic reply. But the officer didn’t press it; he simply got Middlebrooks’s signature on the summons, and left.

Now, any sensible crook is going to get in his car, turn the key, and say to himself, “I reckon I got to light out for the Territory.” But Middlebrooks apparently never read The Adventures of Huckleberry Finn, so he inadvisedly stuck around. The same officer saw him, a few minutes later, sitting in the driver’s seat of “his people’s car.” He accordingly ran a license check and learned that the car was registered to Middlebrooks. That, combined with the officer’s perception that the resort area (between 19th and 21st Streets) was “a fishing hole for criminal behavior,” led the officer to investigate further.

[On a side note, as a resident of Virginia Beach, and as a former City employee, I can imagine the city fathers cringing at this description of an area that is so vital for the City’s tourism industry. This is not the kind of publicity that the Chamber of Commerce envisions for my city’s ability to lure Canadian families here, or to compete with those rascals down in Myrtle Beach. And in a published opinion, no less. But I digress.]

The officer went back to the car and asked Middlebrooks to step out. He asked for permission to search the car. Middlebrooks, who knew his rights reasonably well, said no. (Yes, you can do that.) But then a police sergeant told him, “I’m going to call the drug dog out. I’m going to have him run your car.” Checkmate, Middlebrooks thought. In response to a follow-up question, he admitted that there was an ounce of marijuana in the car. Police also found a scale, which probably tipped the balance – sorry! – in favor of a possession with intent to distribute charge.

Middlebrooks got himself a good lawyer, and that lawyer recognized that the police’s grounds for the interrogation were pretty thin. He moved to suppress everything that happened after Middlebrooks was asked to step out of the car, or at least everything that happened after the drug dog was mentioned. The trial court denied that motion, and Middlebrooks thereupon entered a conditional guilty plea.

The Court of Appeals reverses. It eschews any analysis of whether this was a valid Terry stop when the officer asked Middlebrooks to step out, since he hadn’t made any incriminating statements in the immediate wake of that event. The good stuff came after the dog was mentioned, so that’s where the court’s analysis starts. And the court concludes that these circumstances did amount to a Terry stop, rather than a consensual encounter, as the prosecution had urged. That’s because, when the police mentioned the dog, “no reasonable person would have felt free to leave.”

While consensual encounters require no suspicion whatsoever, Terry stops have to be based on some articulable and reasonable suspicion of criminal behavior. While Middlebrooks was admittedly in an allegedly high-crime area (if you listen carefully, you can hear the Chamber of Commerce groaning again), that isn’t enough to justify a stop; the Supreme Court so held just four months ago. That leaves the police with just one suspicious circumstance – Middlebrooks’s alleged lie about the ownership of the car. But that doesn’t indicate that he’s involved in criminal activity, so the conviction is reversed. Technically, the case is remanded for a new trial, if the Commonwealth wants to go through with it. But with no marijuana and no confession, I think we can agree that this case is concluded.

Domestic relations
Back in late January, a panel of the Court of Appeals decided the case of McKee v. McKee, which presented three principal issues. A divided court ruled partially in favor of the husband and partially in favor of the wife, with Judges Clements and Haley in the majority and Judge Humphreys dissenting. But the court granted en banc rehearing the next month, and now we get the court’s final word on the matter: The always persuasive Judge Humphreys manages to reel in all of his colleagues except the original panel majority. That means that the wife gets a victory by an 8-2 margin on the only two issues decided yesterday.

That’s right; two. The third issue (whether some of the wife’s claimed expenses were speculative) produces an impasse at the court, as Judge Frank did not participate in the case and the other ten judges are split 5-5. The practical effect of that is that this issue is affirmed without discussion, and this opinion can’t be cited as authority on this point.

On the other two, the court unanimously affirms the trial court’s decision to include wife’s mortgage in her monthly expenses. Husband had argued that the language of the separation agreement – by which wife got the marital home, assumed the mortgage, and held husband harmless for that mortgage – meant that she couldn’t claim that as an expense in calculating spousal support. The court rejects that contention, saying that the indemnity relates to claims made by the mortgage company (such as for a default in the mortgage payments). The court also points out that wife refinanced the mortgage that was in effect when the agreement was signed, effectively removing husband’s name from the obligation.

The other issue is the one that produces the 8-2 split. The majority rules that wife did not have an immediate obligation to secure income to reduce her support needs. Years ago, before the couple’s children were born, wife had worked as a respiratory care provider. Husband brought in a vocational specialist who testified that such workers were in demand, and made around $40,000 a year. But wife didn’t go for a job like that; instead, she put her name on a list to be a substitute teacher at the children’s school.

A closer look at the facts reveals that there are warts on both parties’ legal positions. Wife couldn’t exactly go back to work as a respiratory care provider because, in the interim (the 15 years while she was CEO of the house), Virginia had imposed a regulatory framework on such providers, requiring that they be licensed. Wife wasn’t licensed, and there was no testimony as to what she would have to go through (for example, continuing education) to get certified. That means that she could not take such a position, making the expert’s testimony speculative. But the majority holds only that wife didn’t have to go to work immediately when husband left her. The dissent points out, plausibly, that there was a delay of twenty months between husband’s departure and the hearing, and that ain’t exactly “immediately.” Indeed, the majority doesn’t put a limit on the length of time (understandably, since that will vary on a case-by-case basis) the wife can remain either unemployed or underemployed.

In the end, the majority hangs its collective hat on the burden imposed on the party seeking to impute income (here, the husband) to prove the need to impute, and the amount. The trial court had found the expert’s testimony not to be credible, so he failed in that duty.

Domestic relations practitioners should pay careful attention to this opinion for the way in which it explains, and ultimately distinguishes, the court’s early decision in another case involving the question of whether the support calculus can include consideration of one spouse’s mortgage payment. That earlier case is Gamble v. Gamble, 14 Va.App. 558 (1992).